In my post laying out the damage the Nunes memo might have caused, I predicted that defense attorneys would use the release of the memo — and the language Don McGahn used to claim its release served a public interest — to support their arguments that defendants should get to review the underlying application for a FISA warrant.

In the 40 year history of FISA, no defendant who got notice that FISA data was being used against them in prosecution has been able to review the application used against them. Because Nunes released this information so frivolously, because White House Counsel Don McGahn, in his cover memo, suggested this was a time when “public interest in disclosure of [FISA materials] outweighs any need to protect the information, the memo lowers the bar for release of FISA-related information going forward.

I assume Carter Page, if he is charged, will successfully be able to win review of his FISA application (and think that would be entirely appropriate); that may mean he doesn’t get charged or, if he does, Mueller has to bend over backwards to avoid using FISA material.

But I also assume — and hope — that this disclosure ends the 40 year drought on the release of information, which the original drafters of FISA envisioned would be appropriate in certain circumstances. I think this the one salutary benefit of this memo; it makes it more likely that FISA will work the way it is supposed to going forward.

I even think it possible that the release of this information may affect the response to Keith Gartenlaub’s pending appeal in the Ninth Circuit. His is a case that merits FISA review, and whereas the court might have hesitated to give him that in the past, it would be far easier for them to do so here.

Former Attorney General Michael Mukasey, fresh off trying to broker the release of sanctions violator Reza Zarrab, just gave defense attorneys another big gift.

In a WSJ op-ed that ignores all the holes in the Nunes memo and pretends two guilty pleas about lies about negotiations with Russians have nothing to do with an investigation into “collusion” with Russians, he says that Carter Page’s FISA application should be made public so we can figure out whether DOJ misled the FISA Court.

I believe that at a minimum, the public should get access to a carefully redacted copy of the FISA application and renewals, so we can see whether officials behaved unlawfully by misleading a court;

Remember: when defendants who’ve gotten FISA notice ask to see their own applications to see whether “officials behaved unlawfully by misleading a court,” one thing the government has to do to keep the application secret is submit a declaration from the Attorney General saying that FISA applications are so sensitive they can never be shared with defendants. In the declaration Eric Holder submitted in the Gartenlaub case, for example, he claimed,

Based on the facts and considerations set forth below, I hereby claim that it would harm the national security of the United States to disclose or hold an adversary hearing with respect to the FISA Materials.

[snip]

I certify that the unauthorized disclosure of the FISA Materials that are classified at the “TOP SECRET” level could reasonably be expected to cause exceptionally grave damage to the national security of the United States. I further certify that the unauthorized disclosure of the FISA materials that are classified at the “SECRET” level could be expected to cause serious damage to the national security of the United States. The FISA Materials contain sensitive and classified information concerning United States intelligence sources and methods and other information related to efforts of the United States to conduct national security investigations, including the manner and means by which those investigations are conducted. As a result, the unauthorized disclosure of the information could harm the national security interests of the United States.

I’m sure Holder was using boilerplate that Mukasey himself used, when he submitted similar declarations to courts.

Remember, Gartenlaub is awaiting a ruling from the Ninth Circuit on whether he should be able to access his FISA application to see whether officials misled the FISA Court. The government has been claiming over and over that accessing his FISA application to do so would be too dangerous.

And yet, here we have one of the most hawkish Attorneys General in recent history telling the world that even the public release of FISA applications to do just that would be useful.

Marcy Wheeler is an independent journalist writing about national security and civil liberties. She writes as emptywheel at her eponymous blog, publishes at outlets including Vice, Motherboard, the Nation, the Atlantic, Al Jazeera, and appears frequently on television and radio. She is the author of Anatomy of Deceit, a primer on the CIA leak investigation, and liveblogged the Scooter Libby trial.

Marcy has a PhD from the University of Michigan, where she researched the “feuilleton,” a short conversational newspaper form that has proven important in times of heightened censorship. Before and after her time in academics, Marcy provided documentation consulting for corporations in the auto, tech, and energy industries. She lives with her spouse in Grand Rapids, MI.

Mikey, he likes it. Former federal judge and successor as Attorney General to the great Alberto Gonzales, one of Bush the Younger’s several AGs, Michael Mukasey quickly distanced himself from his judicial objectivity and established himself as a Bush and Republican hack. It’s an honor he refuses to give up.

Time magazine’s Massimo Calabresi regards Carter Page as well educated and a legitimate pick for Trump’s foreign policy team. For starters, Time has long had a special place on the right backfield of the MSM. That said, Calabresi has a point, but only if one looked at the names of the schools Page went to: Annapolis, Georgetown, NYU, UCL. That reveals the superficiality or carefulness of Calabresi’s comment. It is only on opening the cover of Dr. Page’s book that one sees the strange, idiosyncratic, and passionately Russian-centered story of Carter Page.

Giving a softball interview while not thinking of how you can be criminally charged based on what you say is somewhat easier than facing a serious interviewer when you, on any given night, you have even odds of sleeping in jail.

I meant that he wasn’t behaving as trippy-space-cadet bro, not that he was necessarily a great scholar. He barely can put together a few words, never mind sentences in US TV interviews. Which, given a few, you’d think it might not be in your best interest to continue, considering how flaky they came off. And yet, there he is. I contemplate whether this scattered, dippy persona is an act; to deflect from guilt, or to deflect from being a decoy/intel asset.

EW, it sounds like you think this is a ‘bad’ thing that the DOJ should actually need to defend their warrant application?

I’m not convinced it really will damage national security to do this, and in the “rare and exceptional’ circumstances where FISA does issue a warrant (supposedly there are not that many), it shouldn’t be treated any differently than a warrant for any ‘run of the mill’ search. We’ve all heard now about how much supporting information is required and how each suspicion needs to be corroborated, so the passing of any ‘reasonable suspicion’ test should be easy. They’ve already got their paperwork done.

That said, I still think Mr. Page is in deep doo-doo.. If this were a ‘run of the mill’ warrant, he wouldn’t get to factually challenge the specifics of his conversations with various Russian Intelligence operatives, the DOJ would only need to demonstrate that they have multiple sources of corroborating information to suggest that his actions require a deeper look. If this were a ‘run of the mill’ warrant, the DOJ would have NO obligation to tell the judge what a sweet and reasonable guy he is and how the source is partly funded for political purposes. I expect that the FBI gets tips from mobsters all the time, and they hold up in warrant applications just fine. Page is sketchy as heck, and his actions demonstrate that keeping an eye (and ear) on him is 100% reasonable given his public behavior. Even regular police officers advise you with the Miranda notice, “they can and will use anything you say against you in a court of law”…they’re under no obligation to testify on your behalf.

Where it would be a Good Thing ™, is challenging the FBI in cases like Gartenlaub and Hutchins. What drew the FBI’s attention to them and what supporting information do they have to make the searches ‘reasonable’? These are cases where the defendant may actually benefit from being able to challenge their warrant applications. Thanks to Snowden, we all know this is going on now…let’s start forcing the DOJ and FISA court to start showing proper ‘probable cause’ on these investigations, the old excuse ‘he had a broken tail-light, so I needed to search his trunk’ won’t hold up any longer.

Welp. Okay. Let us start off with this question: What level of classified sources and methods do you think ought not be put on public display? Are there any, or is it all up for grabs?

Secondly, what do you know of “run of the mill warrants”? Because defendants can very much challenge those. It is called a Franks v. Delaware motion and request for evidentiary hearing. And, upon an appropriate initial showing, the government does indeed have “to tell” the judge and court about their app sources. Sometimes they do, win or lose, often they refuse because that would entail burning their CI’s. So be it. But do not deign to tell me this kind of interplay and determination never happens, because I can guarantee you it does.

And, thanks for the editorializing, but, no, not a lick of this depends in the slightest on Ed Snowden. And if you think it does, you are sadly uninformed.

Danny D… totally agree with you. I’m supper confused with bamz comments which seem to be refuting the idea that warrant applications should be scrutinized- Isn’t that the meat and potato’s of EW’s work? That the Nunes memo challenge to FISA was ridiculous… is accepted by everyone except Sean Hannity. So, while we can laugh about that, we who oppose Police State surveillance should be happy that the FISA court is now dinner conversation for many Americans.

1) Up until now, defendants have been kept from questioning search warrants through a variety of means, including ‘national secrecy’ and ‘lack of standing’. Carter Page can now move past both of these obstacles. The President’s declassification clears both of these, and the general knowledge of FISA and the surveillance of Americans via Snowden makes it more difficult for the courts to deny it’s happening.

2) Defendants can most certainly challenge the initial warrants, that’s a great thing. I’m just thinking that Carter Page isn’t likely to win in this case, due mostly to the abundance of supporting facts around his sketchy behavior.

I think challenging warrants is a good thing, it keeps their issuance in check.

1) Uh, no, the “Presiden’t’s declassification” does not “clear” anything. It gives rise to a potential argument, at best. You act like Carter Page is charged with a crime; he is not. And you keep bandying about “Snowden” like it means something to the instant issue. It does not.